Tech and media firms join Twitter in key test of FBI gag orders

A bitter fight between the Justice Department and Silicon Valley is expanding as a diverse group of companies have lined up behind Twitter in a case that will help determine the limits of free speech in the age of Edward Snowden.

On Tuesday, groups ranging from BuzzFeed to Wikipedia to the Guardian filed friend-of-the-court briefs (see below) to support a challenge by Twitter to Patriot Act gag orders. Two other large companies, which are only allowed to refer to themselves as “Corporations 1 & 2,” also filed briefs.

The case, which began when Twitter sued the Justice Department in October, turns on how companies may use so-called “transparency reports” to tell users about government requests for their data.

Twitter claims it has a right under the First Amendment to say specifically how often it receives National Security Letters, while the government counters that companies can only do so in broad strokes lest they jeopardize national security.

In recent years, the FBI has made extensive use of National Security Letters to obtain information about subscribers, while also attaching gag orders to the letters that forbid companies from revealing they have even received a letter in the first place. The Justice Department has issued hundreds or thousands of such letters to companies like Google, Facebook and AT&T.

In its lawsuit, Twitter claims it is an illegal prior restraint of free speech for the government to bar companies from even disclosing that they have received a letter. A group of media companies has now voiced support for that argument:

“Twitter’s proposed transparency report is no less entitled to free speech protections than ‘literature’ or ‘movies,'” said the brief filed on behalf of BuzzFeed, NPR, the Washington Post, PEN America, the Guardian and First Look Media.

The brief reflects the media’s newfound legal interest into what has largely been a tech industry fight, but also shows how digital media companies like BuzzFeed are finally taking up the legal fight for free speech, a burden that has long been borne almost entirely by old-line newspaper companies.

“Corporations 1 & 2”

Meanwhile, a separate filing shows that a phone and internet company are also weighing in on the Twitter case, but in the guise of “Corporations 1 & 2.” The companies (which are likely Verizon and Google or Yahoo) are using the pseudonyms at the direction of a judge, and are muzzled in part because they are already before an appeals court in another national security case over the right to disclose government demands.

The right of internet companies to discuss security letters has become more pressing since 2013 , when leaked documents from Edward Snowden revealed massive surveillance operations by the U.S. government. Those operations rely on obtaining information from tech and phone companies, and have been facilitated by the legal process governing Patriot Act letters, as well as a related process for NSA demands.

In response, companies like Twitter have come to claim that free speech and the public interest give them the freedom to disclose how many NSA and FBI letters they receive in the first place. The companies stress they are not arguing for the right to disclose the contents of the letters, since doing so could jeopardize ongoing investigations, but only the existence of the letters.

The docket also shows that a group of other entities  — the Wikimedia Foundation, CloudFlare, Sonic, Wickr, Credo Mobile and Automattic (publisher of WordPress.com) — filed a brief in support of Twitter.

Here’s a copy of the media companies’ filing with some of the key parts underlined. Note that a key part of the argument turns on whether the federal judge has authority to hear the case in the first place (as the companies argue) or if the case belongs instead in a controversial secret court (as the Justice Department claims).

Media Amicus in Twitter Case

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This article was updated at 12:35pm ET to note that Automatic is the publisher of WordPress.com; an earlier version said “WordPress” (which refers to the software used by the company, WordPress.com). This article was also updated at 1:40pm on Thursday to clarify that it was the Wikimedia Foundation (not Wikipedia) that was on the amicus brief.

Why we need social media: Press freedom is still declining rapidly

The latest global index from Reporters Without Borders shows that freedom of the press is in decline in a majority of the countries surveyed — including the United States — which makes alternative forms of media such as Twitter more important than ever

Google, gag orders and WikiLeaks: who’s lying?

The political fallout of WikiLeaks has passed, but the fury of law enforcement has not. More than four years after the organization published a trove of U.S. diplomatic cables, federal agents continue to wage a secret legal campaign to put the screws to those responsible.

This month, a new twist to the story emerged as lawyers for WikiLeaks accused Google of betraying its users by secretly turning over their communications to the Justice Department. Google shot back that it did all that it could, but the government stifled the company with gag orders.

The dispute suggests someone is not telling the truth but, at a deeper level, points to the problem of secret rabbit holes in the U.S. justice system that obscure the existence of criminal investigations.

Google said, WikiLeaks said

Right before Christmas, three WikiLeaks staffers received notice from Google that the search giant had turned over information about their Gmail accounts to law enforcement in early 2012. The news, while unpleasant, can hardly have come as a total surprise: the government has aggressively gone after others involved in the cable dump, and it’s widely known that prosecutors made similar search demands of Twitter.

Lawyers for the WikiLeaks staffers, however, issued a public letter to Google, saying they were “shocked and disturbed” that the company took two and half years to notify them about the requests. They implied Google sold out the staffers, who regard themselves as journalists, to the federal government.

In response, Google took to the press through one of its lawyers, who told the Washington Post that the company had been silenced by court-imposed gag orders, and that it has repeatedly gone to court for the right to tell WikiLeaks users about the search requests.

This does not appear to have satisfied Michael Ratner, a lawyer who represents the staffers.

“To this date we have had no answer to our questions from Google.  To accept that they challenged the gag order, or any other matters, we would need a written answer from Google to our letter,” Ratner told me by email last week. “We also want to be assured that they challenged the gag order before they turned over any of the material.”

He added that the group also wants full copies of all the legal papers that were served on Google, and suggested that the company is not as vigilant in standing up for its customers’ privacy as are Twitter and Microsoft.

The result is a standoff in which it’s impossible for journalists or anyone else to know for certain whether Google is being truthful. Court records and further conversation with a lawyer for Google do, however, provide a better picture of what’s going on.

“Google is still muzzled”

It can be a surprise for lawyers and journalists, who are used to treating court records as public documents, to discover just how

Photo by Alain Bachellier/Flickr

Photo by Alain Bachellier/Flickr

much the Justice Department cloaks its legal process in the name of national security. In cases related to mass data collection, for instance, many of the dockets are sealed, and the tech companies involved are precluded from even disclosing they are before a judge in the first place.

A similar situation surrounds the WikiLeaks investigation. Under laws that govern special subpoenas and search warrants, the Office of the U.S. Attorney in Eastern Virginia has obtained gag orders that forbid Google from telling users that law enforcement has demanded access to their email accounts.

The gag orders normally last 90 days. But according to Al Gidari, a lawyer for Perkins Cole who represents Google, the Justice Department has been pushing judges to renew the order over and over — even though Google presumably gave up information about the accounts long ago. He also suggested that this behavior was tied to public outcry over the government’s demands to obtain Twitter accounts of those it believed were tied to WikiLeaks-related suspects (including an Icelandic member of Parliament).

“[They] became aggressive immediately in the wake of the Twitter backlash and opposed Google notice to users out of the box. Thereafter, it was always a fight to get any notice. Ultimately, Google prevailed with the passage of time and was able to give notice to users but it still can’t discuss the orders,” Gidari said.

Gidari also said that, while all gag orders related to notifying WikiLeaks staff about Google searches have been lifted, other restrictions remain in place.

“The [Assistant U.S. Attorneys] did everything they could to muzzle Google, and Google is still muzzled so I can’t answer specific questions about any order other than to tell you that Google is seeking to have all of it unsealed.”

Gidari added that the reason Google hasn’t released documents about the investigation, or provided formal answers to WikiLeaks’ recent letter, is because it can’t. Under the terms lifting the gag order, Google can’t do anything more than tell the affected users that law enforcement has demanded access to their account.

Unfortunately, Gidari’s explanation can’t be verified since the company hasn’t shared the judge’s ruling that lifted the gag order — and is likely forbidden from doing so.

Meanwhile, an Assistant U.S. Attorney named Andrew Peterson who is involved in at least one case involving WikiLeaks and Google did not respond to multiple requests to explain the state of the gag orders. A spokesman for his office, Joshua Stueve, declined to comment.

Did Wikileaks know all along?

The dearth of documents (recall the government won’t even acknowledge that most of them exist) about the WikiLeaks Julian Assangeinvestigation is frustrating, but the court docket does supply one important clue about what is going on: a few pages of court rulings from 2012 that suggest someone in WikiLeaks knew the Justice Department was targeting Gmail accounts.

I came upon these pages in March of 2012 and surmised they related to either WikiLeaks or to file-sharing kingpin Kim Dotcom (another high-profile fugitive of the U.S. government). Google told me at the time it could not say who the filings were about, while while the government refused to say anything.

Now, we know the filings were about WikiLeaks. And, like the current dispute between Google and the WikiLeaks staffers that came to light around Christmas, they relate to when the company can tell someone that the Justice Department has asked for their emails.

In a crucial passage from the earlier Google file, U.S. Magistrate Judge Thomas Rawles Jones, Jr. tells the government why it can no longer bar Google from telling its subscribers about the search demand (emphasis mine):

However, the court now finds that the government’s interest in concluding its investigation no longer outweighs disclosure to the subscriber of the existence of the warrant.

The sole potential problem that notification might create that was raised by the government with specificity has now been eliminated by subsequent events.

In a related order issued a month later, Judge Rawles issued a further, important clarification: he said his first ruling not only allowed Google to notify the subscriber, but also allowed the subscriber to tell others about the search (the judge added the order would not go into effect for 14 days to grant the government time to appeal, but no such appeal appears to have succeeded).

Google appears to have mounted a successful challenge in 2012 to tell someone in the WikiLeaks organization  — perhaps its leader, Julian Assange — that the Justice Department had carried out a search of their account. If so, this raises the question of why that person failed to broadcast that fact and, in doing so, warn others to be on guard.

In response to a question about the orders that appeared in early 2012, the lawyer for the WikiLeaks staffers simply stated by email, “I don’t know who these orders concern.”

Who is lying?

The recent back and forth between Google and WikiLeaks, along with the existence of the 2012 documents, suggest Google is likely being truthful about its efforts to challenge the gag orders. Meanwhile, someone in WikiLeaks may have failed to use an earlier legal window to tell others in the organization — and the general public — the Justice Department was searching Gmail accounts.

But it’s impossible to know for sure. And that, in turn, points to the biggest liar in the Google-WikiLeaks affair: the U.S. government, which claims that national security requires it to disregard even the most basic principles of procedural justice by scrubbing the very existence of certain dockets — including ones that appear to have no obvious tie to security.

Keep in mind that the secret court orders related to the Google-WikiLeaks conflict are not about disrupting potential terrorist plots. Instead, they represent a process for the Justice Department to search the correspondence of people who consider themselves to be journalists, and to use gag orders to ensure it takes years to learn a search has taken place at all.

This is just the latest spread of a shadow justice system that serves to breed paranoia and distrust. Whether you believe Google or WikiLeaks, their current dispute wouldn’t exist in the first place if the Justice Department scaled back its use of secret investigations.

“Central to this whole question, is not just Google, but the federal government,” Ratner said. “This entire investigation, including the search warrants, is a broad attack on free speech and free press. It should have never begun, and certainly should have ended long ago.”

WikiLeaks wants to know if Google fought Gmail seizure warrant

WikiLeaks has demanded answers from Google about why the company took two and a half years to notify three WikiLeaks staffers that it had handed over their Gmail data to the U.S. authorities.

[company]Google[/company] told the WikiLeaks workers — section editor Sarah Harrison, spokesperson Kristinn Hranfsson and journalist Joseph Farrell — on Christmas Eve that it had been compelled by a Virginia district court in 2012 to hand over their emails, email metadata, contact addresses, draft and deleted emails, and the IP addresses from which they had logged in.

WikiLeaks published the search and seizure warrants on Sunday, along with the emails the three had received from Google explaining that “the legal process was initially subject to a nondisclosure or ‘gag’ order that prohibited Google from disclosing the existence of the legal process” to them. It’s unclear for how long that gag order remained in place.

The whistleblowing group also published a letter it had written to Google chairman Eric Schmidt, demanding a copy of the gag order, a list of all the materials the company supplied to law enforcement, and an explanation for why Google didn’t notify Harrison, Hranffson and Farrell when it received the search warrant, and when it submitted the materials.

It read:

We are astonished and disturbed that Google waited over two and a half years to notify its subscribers that a search warrant was issued for their records…

Had Ms Harrison, Mr Hranfsson, or Mr Farrell been aware of such proceedings they could have intervened and protected their interests including their rights to privacy, association and freedom from illegal searches.

The letter, drafted by Center for Constitutional Rights president Michael Ratner, also asked Google whether it had challenged the search warrants or gag order before complying, and whether any other WikiLeaks-linked individuals have also received search warrants for their Google records:

Google and WikiLeaks have an uneasy relationship. Last year WikiLeaks chief Julian Assange published a book that was largely based on the transcript of a lengthy conversation he had with Schmidt in 2011, before Assange claimed asylum in Ecuador’s London embassy in mid-2012. The U.K. police want to arrest Assange for extradition to Sweden, where he faces questioning over rape allegations. Assange claims that this is a ruse to have him extradited to the U.S. over Chelsea Manning’s leaking of classified U.S. Army material through WikiLeaks – probably also the case behind the Gmail warrants, though this is not confirmed.

In his book about the Schmidt conversation, Assange maintained that Google’s management is overly close with the U.S. authorities and that Schmidt and his advisor Jared Cohen have acted as agents for U.S. foreign policy in their overseas travels — he memorably called Cohen Google’s “director of regime change.” (Side note: An interesting, if extremely dense, account of Google’s longstanding interactions with U.S. military and intelligence was published on Medium last week.)

[company]Twitter[/company] has previously resisted efforts by the U.S. authorities to extract the records of WikiLeaks followers including activist Jacob Appelbaum and Icelandic politician Birgitta Jónsdóttir, who was also involved in the Manning “Collateral Murder” leak. While that was a warrantless court order, it was accompanied by a gag order that Twitter successfully challenged. WikiLeaks’ Sunday letter to Schmidt recalled part of the 2011 conversation in which Assange referred to that case, and asked Schmidt to tell WikiLeaks if a similar request came Google’s way.

The key question now really is how hard Google fought the U.S. authorities in this free speech case. After all, WikiLeaks is arguably a media organization and Collateral Murder — an evidence-based account of how a U.S. Apache helicopter slaughtered civilians and Reuters journalists in Baghdad – was an act of journalism.

I have asked Google this question, to which it gave something of a non-answer:

We don’t talk about individual cases. Obviously, we follow the law like any other company. When we receive a subpoena or court order, we check to see if it meets both the letter and the spirit of the law before complying. And if it doesn’t we can object or ask that the request is narrowed. We have a track record of advocating on behalf of our users.

This article was updated at 8.50am PT to include Google’s reply to my question.

Twitter fights Turkish order to block newspaper’s Twitter account

Twitter says it plans to fight a court order from the Turkish government that is trying to force the company to block or remove the account belonging to a Turkish newspaper, after the paper tweeted information the authorities say could compromise national security

EU response to free speech killings? More internet censorship

In the wake of this week’s terrorist attacks in Paris, which began with the killing of 12 people at the offices of satirical publication Charlie Hebdo, the interior ministers of 12 EU countries have called for a limited increase in internet censorship.

The interior ministers of France, Germany, Latvia, Austria, Belgium, Denmark, Spain, Italy, the Netherlands, Poland, Sweden and the U.K. said in a statement (PDF) that, while the internet must remain “in scrupulous observance of fundamental freedoms, a forum for free expression, in full respect of the law,” ISPs need to help “create the conditions of a swift reporting of material that aims to incite hatred and terror and the condition of its removing, where appropriate/possible.”

This sounds similar to recent agreements in the U.K. whereby ISPs use filters to stop citizens seeing “extremist” online content, though it’s hard to tell without more details. There seems to be no coordinated push for more internet surveillance just yet, although there is a drive for better intelligence sharing between EU countries.

It seems, to say the least, an awkward reaction to what was in part a free-speech-related attack — the left-wing Charlie Hebdo has itself frequently been accused of hate speech for its portrayal of Muslims and others. On that front, a German newspaper that reprinted blasphemous Charlie Hebdo cartoons of Mohammed in the wake of the attack was firebombed in the early hours of Sunday morning, with no injuries. Others that did the same remain under police guard.

At the Paris meeting, the ministers also agreed on a more positive way to counter terrorist propaganda: more speech. They said they had resolved “to develop positive, targeted and easily accessible messages, able to counter this propaganda, aimed at a young audience that is particularly vulnerable to indoctrination.”

The ministers also agreed on various other measures to do with keeping an eye on people travelling, including urgently moving towards a new European Passenger Name Record framework. As legal advice released this week indicates, any such agreement will need to take account of last year’s striking-down of the Data Retention Directive, by embedding significant privacy safeguards.

The meeting came as ministers and heads of state from around the world marched in Paris in solidarity against the attacks and in favor of the free expression for which Charlie Hebdo was targeted. These included representatives of countries such as Egypt, Turkey, the United Arab Emirates, Algeria and Russia, all of which are notable for cracking down on free expression at home — their presence drew condemnation from Reporters Without Borders, which said it was “appalled”.

“We vomit on all these people who suddenly say they are our friends,” Charlie Hebdo cartoonist Bernard “Willem” Holtrop said of some who had expressed condolences and solidarity with the publication, such as Vladimir Putin, far-right French politician Marine Le Pen, Queen Elizabeth and Pope Francis. In the Saturday interview with a Dutch newspaper, he added: “I never come to the editorial meetings because I don’t like them. I guess that saved my life.”

Why Sony is way out on a limb with legal threats against Twitter

Sony is threatening Twitter with a lawsuit unless it removes accounts and tweets that have posted screenshots or excerpts from its hacked emails, but the legal basis for such threats is limited and so far Twitter has resisted Sony’s requests